Page:United States Reports, Volume 209.djvu/407

 RICHARDSON v. SHAW. 209 U. 8. Oluion of thz Courk pese to defraud or delay his creditors or give preference to any one, and does not impair the value of his estate. An in- solvent is not bound, in the misfortune of his insolvency, to abandon all dealing with his property; his creditors can only complain if he waste his estate or give preference in it dis- position to one over another. His dealing will stand if it leave his estate in as good plight and condition as previously." The bankrupt act in � provides: "A person shall be deemed to have given a preference if, being insolvent, he has within four months before the filing of the petition, or after the fding of the petition and before the adjudication, procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater per- centage of his debt than any other of such creditors of the same A creditor is defined to include any one who owns a demand or claim provable in bankruptcy. Sec. 1, sub. 9, Bankruptcy Act, 1898, 3 U.S. Comp. St. 3419. It is essential, therefore, in order to set aside the alleged preference, that Shaw & Com- pany at the time of the transfer should have stood in the re- latiun of creditor to the bankrupt. Of course, if the New York rule based upon Markham v. Jaudon is correct, and the broker was the pledgee of the customer's stock, there can be no ques- tion that in redeeming these stocks for the purpose of satis- fying the pledge no preferential transfer under the bankruptcy act resulted. In our view we think no different result is reached, so far as a preference in bankruptcy is concerned, if the Massachusetts cases could be taken to lay down the correct rule of the re- lations between broker and customer. Gray, 375, decided in 1860, in which the opinion, though by Chief Justice Shaw, is very brief. It was therein held that the broker was a holder of the shares upon conditional contract

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